Friday, January 20, 2012

Just When You Thought It Was Safe To Use The Internet…

Forget SOPA and PIPA: A Recent SCOTUS Decision and the Megaupload Crackdown Serve as Far More Immediate Threats to our Cyber Freedom

On January 18 (which, coincidentally, was also the day I turned 26), hundreds of websites protested the proposed SOPA/PIPA legislation by “shutting down” their own services. Wikipedia’s English site went black, Reddit ceased operations for a full 24 hours, and Google “celebrated” the makeshift Web holiday by presenting its laziest doodle yet. For once, it seemed like everybody on the ‘net was working on the same page, to help combat federal policy making of the most repressive changing their Facebook profile photos for a day, in most instances.

And so, the Internet peoples celebrated and self-congratulated themselves, with the Web as a collective giving itself a big, fat pat on the back for standing up to the man in the name of cyber-freedom. This was our strike to the empire, our way of telling those fat cats in Hollywood and Capitol Hill that, as Dee Snider once so proudly declared, “we’re not gonna’ take it anymore.

But on Jan. 19 - that’s just one day later - something happened. Actually, two things happened, which seem to indicate that SOPA/PIPA isn’t our only free expression concern as denizens of the World Wide Web.

The first incident occurred on January 18, which means while all of us were trading high-fives for sticking it to the federales, a karate chop to the cojones of free expression was taking place right under our noses.

There’s this thing you’ve probably heard of called “the public domain.” You see, for creative works released prior to certain legislative acts (or in the case of at least two all-time classic horror movies, because you were screwed over by your distributor at the last minute), there’s no federally recognized “owner” for such works, meaning that, for all intents and purposes, those works are completely and totally free to distribute, air, mass produce, reconstruct or recreate, in any format you want.

Thusly, since nobody legally owns “Night of the Living Dead” or certain episodes of “The Beverly Hillbillies,” that means we can do whatever the hell we want with said media, without having to pay a dime to anybody. Small-time TV stations and fledgling cable channels have thrived off free content in the form of “public domain” works for decades, and in some cases, otherwise forgettable works have been elevated to nigh-classic status due to their universal availability.

However, following the Supreme Court of the United States’ decision in Golan V. Holder, the public domain status of over ONE MILLION works could be revoked, or gulp, SOLD OFF to the highest bidder, resulting in a.) the limitations of what we have access to read, perform and/or screen, and b.) the potentiality that certain properties can be purchased and amassed by non-estates for profit - and, oh yeah, in the process, give corporate entities new avenues to sue the shit out of you.

The following is a long and mostly boring recount of how this potentially uber-corrosive decision came to be. If you have an aversion to technicalities, just skip ahead to the next paragraph for the gist of why this stuff matters.

The decision in Golan v. Holder basically says that foreign works previously in the public domain are no longer protected as “free works” under the Copyrights Clause of the United States Constitution. Now, the Golan v. Holder case stems from this thing called The Uruguay Round Agreements Act, which was passed in the 1990s in an attempt to standardize international copyright agreements. What the recent SCOTUS decision says, in essence, is that this standardization no longer applies, and the copyright status of international works are subject to the copyright laws of the nation in which said media was created, not the US of A.

This is a troubling notion, for two primary reasons. For starters, the SCOTUS decision puts the legality of millions upon millions of works - films, music, stories, literature, plays, dances, everything - OUT of the hands of US courts, and in case you weren’t aware, most of the copyright laws outside of the U.S. are really, really shitty. Go ahead, do your research on British copyright law, and prepare to weep a crimson river. Note that this doesn’t apply directly to American works, but works copyrighted outside of US jurisdiction. That means that “all-American” works - including the formerly in the US public domain “It’s a Wonderful Life” - can be yanked out of the “free-to-use” column because a.) they copyright is currently held by foreign owners or b.) because the source material for said work is based on a copyrighted work in another country.

If you have a keen eye for cause-and-effect sort of stuff, you can see where this is headed; since copyright law abroad is generally more restrictive than it is in the States (meaning, in many countries, people can simply buy the copyrights to whatever they want), that means the floodgates could quickly open and drown us all in a million INTERPOL lawsuits.

Screen a formerly public domain film like “The 39 Steps” or “Metropolis?” That’s now enough to have the Swedes break down your front door, with arrest orders in one hand and presumably a bowl of meatballs in the other. Your junior high school wants to do a production of “Peter and the Wolf?” Well, now you are in league with a bunch of international criminals, and the entire school district can be sued into oblivion by the grandsons and granddaughters of Gestapo agents.

The ramifications here could be huge, with millions of books and musical pieces falling into the clutches of international brokers. What’s to stop foreign businesses and estates from locking up domestic rights to the work of CS Lewis, Wagner or Shakespeare, thus making U.S. citizens beholden to their copyright regulations as well? The short answer is, following January 18, 2012, absolutely nothing.

This freedom eroding announcement was followed up by yet another ominous event just a few hours later, when the feds announced that they were shutting down the popular Megaupload site for "infringing" upon the copyrights of countless recording artists, companies, filmmakers and TV producers.

By the way, Megaupload is a Hong Kong site, with a Hong Kong home office, that is operated by people from Hong Kong. Now, you may be asking yourself how the FBI managed to legally invade another country and take away their belongings. The answer, perhaps you already suspect: because we're America, damn it, and we're allowed to do that.

The U.S. is saying that the site operators have caused more than $500 million in damages (with the feds picking up about $50 million in assets while they were there), referring to seven members of the group as an international criminal cell called the "Mega Conspiracy." In other words? Holy shit, apparently all it takes for the US to go after you is give you a super villain nickname.

So, what do these two events mean for you and me, us regular sods on the Internet? Well, you may not initially think that public domain law and "locker" sites in Oceania have much of a sway on your life now, but these things do something very, very dangerous, and that's something called setting a precedent.

U.S. "justice" works a little like this. As long as we've written down something at sometime about matter how trivial or minor...we can look back on that as a reason/excuse to do whatever the hell we want. You would be shocked - shocked, I say - by the number of Supreme Court decisions that were made based simply on the fact that, years and years earlier, some low-tier judge made a decision in a small court case out in the middle of nowhere...thus, serving as a catalyst for federal decision-making. It's arbitrary, it's stupid, and needless to say, it could result in a lot of harm for our civil liberties.

And in the last few days, we've had two MAJOR precedent-setting events transpire before our very eyes, which could lead to some very, very troubled waters ahead of us.

At the current, it's still a free Internet...but for how long, is anybody's guess.


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